Kellogg v. Inhabitants of St. George , 28 Me. 255 ( 1848 )

Wells J.

—Accompayning the directions given to the jury, they were instructed, “ that if from the evidence in the case, they were satisfied, that the plaintiff rendered the services, and attended the persons sick at Robinson’s, with the knowledge and assent of the defendants, he was entitled to recover.”

The case discloses, that the small pox had attacked the children of Robinson, dwelling in his house, under the care of their mother, and while he was at sea. Before any knowledge of the manifestation of the disease had come to the officers of the town, the plaintiff had been called to visit the family in his professional capacity. The selectmen took the necessary measures, to prevent the spread of the disease, by placing a fence across the road leading to Robinson’s house, interdicting the access of persons to it without permission, appointing a person to superintend the house and take care of its inmates. Three other persons, residing in the neighborhood infected by the same disease, were sent to Robinson’s house. The plaintiff was the only physician who attended upon the patients. Robinson was able to pay for the medical services rendered to his family. The verdict embraced compensation for attending upon all the persons, in the house, who were sick.

Under the provisions of the Rev. Stat. c. 21, towns are liable, primarily, for expenses incurred by the selectmen, within the scope of the act. And the employment of a physician would, without doubt, fall within their line of duty.

But in order to render the town liable, the physician must be employed by the selectmen. Towns are under no other obligations, than those prescribed by statute, in relation to the claim of the plaintiff. Miller v. Inhabitants of Somerset, 14 Mass. R. 396 ; Mitchell v. Inhabitants of Cornville, 12 Mass. R. 333.

The defendants had no knowledge, except that of the selectmen. The general rule of law is, that where one performs a beneficial service for another, with his knowledge and assent, a promise of payment is implied. Does this case fall within the rule ?

The family, being sick, send for a physician, they are not removed from their house. The selectmen interpose, and send other sick persons to the same house, and the physician continues his attentions to all. The family had a right to employ their own physician, and the selectmen did not interdict the exercise of it. A beneficial service was rendered to the family ; it could not be considered as rendered to the town, unless the plaintiff was employed by the selectmen. If a necessity existed, requiring the town to engage the plaintiff, then the service would have been rendered to the defendants. The selectmen might have had a knowledge that the plaintiff was attending upon the family and assent to his doing so, without intending to employ him for that purpose. The fact of the plaintiff’s employment, by the selectmen, does not necessarily arise from their knowledge and assent.

The beneficial service was not performed for the town, unless the plaintiff was employed by its officers.

The case does not, therefore, come within the rule, before mentioned. The jury might have found for the plaintiff, without determining, that he was employed by the selectmen. The instruction must have assumed, that the service performed, was ■for the town. That was a fact to be settled by the jury, and «could only have been found affirmatively, by finding, that the plaintiff was employed by the selectmen. Whether the jury would have so found, upon the facts proved, or by inference from those facts, it is unnecessary to inquire, because, if there was an error in the instruction, the verdict must be set aside.

The same rule, as to the liability of the defendants, must ■apply to the medical services rendered for those, who were sent to the house, in consequence of their sickness. But a jury may have less difficulty, in finding, that the plaintiff was employed to attend upon them, than they would have, in relation to the family of Robinson.

Believing the instructions were not sufficiently definite, and were liable to mislead the jury, there must be a new trial granted. Exceptions sustained.